Outline on offense
Article 301 .- 1. On the basis of Article nominated: The benefit of competition or consent or even against the illegal acts and its relationship to the crime of mismanagement, Macagno, Mauricio Ernesto, Catino, Paola.
2. Text of Article 301. Shall be punished with imprisonment six months to two years, the director, manager, administrator or liquidator of a corporation, or cooperative or collective person who knowingly prestare their assistance or consent to acts contrary to law or statute, which may result damages. If we import the act of issuing shares or capital shares, the maximum penalty is increased to three years' imprisonment, provided that the fact we import no more serious crime punishable .-
3. Legally protected interest: The doctrine, despite the passage of time, never fully agreed with the interpretation to be given to this legal from what is legally right or is injured its location in the Penal Code to the typical nature of the damage. The reasons for such dissent farm in the poor drafting of the offense and to the extent that it gives the same. It is important to determine the correct intelligence to be given to the standard to the constitutional principles that govern matter and point out some relationships between this figure and criminal mismanagement, which leads us to argue that the conduct described in Art 301 function as preparatory acts or early implementation of Article 173 offense Inc. 7 °.
4. Historical genesis in the Exhibition Grounds of Decree Law 17,567, points are included the settlement between the perpetrators of the crime and that, by having it set up when the fact may arise from any damage, greatly extending the applicability of the article relative to the current above that required action as a result of the legal person or association shall be unable to meet their commitments or the need to be dissolved.
5. Legally injured and injury .- The offense characteristic of section 301 is inserted in Part XII devoted to crimes that injure the public faith, understood as the confidence of the population in certain events, institutions or vital documents importance for life in society, whether its strength emanates from a state act or intersubjective relations. However, this article belongs to Chapter V of this title, known as the fraud for Trade and Industry, which led some commentators doubt. Fraud mention about this figure to crimes against property and the typical behaviors that potentially would bring both harm, appears to run on this. It can be seen on this issue two positions: those who tell the public faith as the dominant legal right or those injured emphasize that this is an insult to the Trade and Industry. However, the fact remains that, apart from rare exceptions, the authors point out the nature of the offense giving precedence pluriofensivo the attack on the public trust over the assets of members and others related to the corporation. In the first group of doctrinaire stands Creus, simply and without entering into any dispute referred to the Fraud trade and industry attacks "public confidence in the normal course of trade" which differs from the public Fe as "truth of the signs of authenticity" (5). Sebastian Soler, in the sense indicated, was aware of the embarrassments that generated the inclusion of penal provisions of Arts. 300 to 302 between crimes against property, as did Project 1891 or between the offenses against the public faith, as did the Project 1906 that is as it reaches the Code of 1921, and then conclude that the legally concerned "mainly consists of public faith in the sense of trust , honesty and good faith in business and trade relations, which does not have much to do, of course, with the power of authentication, which was the core of the other falsehoods "(6). Lescano Margitic and are expressed in favor of "general confidence on certain business" as a legal, adding that commercial businesses deserve protection under criminal law in its social usefulness (7). Navarro was also in favor of the ideas mentioned and the proper location of the typical figure of Title XII, "for civil and commercial societies within which the crimes can occur deserve the public's trust because of their appearance and companies are under scrutiny by various bodies of administrative power. " Nevertheless, support endangered or actual harm to the company, its partners or shareholders, and even their creditors (8). Rotman believes that the injury is legally "public confidence in the proper and legal operation of collective entities operating in the commercial and industrial," but "the repression also provides a secondary protection economic potential of society as a whole, the heritage of the shareholders and its creditors. "Finally, it also indicates that" we must not forget that when commercial companies, especially anonymous ones, play a pivotal role in the economy, imbalances caused by the breach of the laws which govern a serious impact on the collective wealth "(9). Almost any good, immediately or mediately related, has been left to chance. In the area opposite ideas rise to Eusebio Gomez whom "the facts that the law provides as fraud Argentina trade and industry, are not crimes against public faith", advising part of a special class of types importing criminal attacks on the trade and public economics (10). That is why in the Draft 1937, which drafted with Jorge Coll, incorporates between "crimes against the trade, industry and the public economy" (11). Ricardo Nunez Gomez raised his criticism and those who followed similar positions, as Enrique Bacigalupo. For Professor Cordoba, "not a question of whether scientific fraud undermine those trade, industry and the economy, or whether part of the title of crimes against business in good faith violate the public trust, or if such fraud must integrate the titles of property crimes. This is on the contrary, to explain why the criminal code includes them among crimes against public faith. "Thus, states that" represent attacks on the general confidence in the smooth development of trade and industry "(12). The clearly seen that the authors have verified the existence of more than a legally injured by emphasizing or highlighting the preponderance of public faith over any other simply because Article 301 is inserted in the title. While Núñez words are strict, his argument was nonetheless being inconsistent, it seems the search for a justification to try to find a foothold for which manage to maintain intact the seat in which the crime was located. Modern, Edgardo Donna tries to "justify" as he refers, the insertion of Article 301 in the title of mention, since it protects "the traffic safety law" even though the offenses "are sincerely directly related to the crimes against economics (13). The same applies to Soler, who should be emphasized that these figures exceed the framework of both property crimes as crimes against public faith (14) to assert the latter location. Other authors cited are listed in the column on this path of pluriofensividad hand. Bounding function and guarantee which expresses the legal right and the founding of the principle of harm emanating from Article 19 of the Constitution, make the analysis can not be partial and must penetrate more deeply about the types of crimes under the type under consideration. Reconciled with the doctrine of vernacular in which crime Delivery contest or consent to illegal or even against an involvement includes more than a legal right, plus the preponderance of one over another should be at least reinterpreted. Repárese in different locations that the crime had studied the draft legislation: firstly, as a crime against property in 1891, as crimes against public faith in the 1906, becoming a crime against the Commerce, Industry and Public Economics in 1937 and 1941 projects. The drafters of these codes were not coincident with respect to the rightful place without the article vary too much from one another.
6. It is also necessary to indicate that a correct interpretation should not be overlooked that, although it is located in Title XII, is no less true that the criminal conduct has little or nothing to do with Public Faith. We are facing special behavior of active subjects, director, manager, administrator or liquidator of a corporation, cooperative or other person who willfully collectively engage in violations of laws or statutes that govern the life of the entity in fulfilling duties. Did not foresee the impact on the public trust placed in the development of trade and industry, unless that trust and not general but particular and own a group of determined people who are not members of those entities, partners, shareholders, or other subjects related to the same legally-creditors, debtors, etc .- One element that must be analyzed at this point is the damage that requires the criminal, or even against the illegal conduct may derive some injury requires the figure as an element without which the action becomes atypical. The previous regulation the existing text claiming the impossibility of the legal person to "meet its commitments" and that typically triggers placed in the "need to be dissolved, as commentators argued for an economic prejudice. Winizky understood that the commitments to mention the rule and that were not fulfilled by the work of an active subject, were linked to the social order, though not necessarily restricted to monetary commitments but a strictly legal concept that would set the state of dissolution or the need to dissolve (15), Rotman, meanwhile, explained that the typical result was the default state (16). Today it is not necessary, which has led to support that the damage can be of any kind (17), even political or moral (18). Such amplitude, contrary to the principle of legality, was strongly criticized by Navarro. This author argues that should not be neglected the legal right not to incur public faith in such "absurd", being aggravated interpretative guidance of the second paragraph that reveals the person of the victim, which is not the corporation but the potential public acquiring the shares or stock, "because although the crime is pluriofensivo must first sort of offending the public trust protected by the commandment" (19). Others, even against the current text requires that the potential harm is equity (20). Donna, For its part, maintains that the injury is the public trust without reaching the end of financial damage, which arises from a joint interpretation of the aggravation of the second paragraph of Article 301 with the type of article 300. Sentence: "interpreting the law is still well outside the law, so that in seeking property damage limits the offense as such" (21). Consider an example to clarify the scenario put forward: The board members of a corporation income allocated to a reserve fund against the possibility of being sued for debt on television advertising, without this constitution is approved by the shareholders as required by status to the detriment of their own interests, is not we are dealing with a case referred to in Article 301 CP?, in principle, yes. But the community was damaged their confidence in the company?, This is not so clear. Navarro brings us a case where the board members expel a partner from within the organization without a decision of the corporate assembly, but the answer in the sense that future savings are affected, as saying. There seems to be that the answer that pleases us. What are the problems that are displayed with the positions outlined? First, it does not seem correct to consider that any kind of prejudice is required by the crime, as do Creus and Fontan Balestra, without contradicting the principles the principle of legality and reasonableness. Therefore only to be rejected. On the other hand, do not believe that public confidence in commercial traffic moved by the display case brought as an example. Navarro endorse the idea and assume that the public, as a future shareholder in the body will suffer is to assume something too absurd: the victims are those who may not have in mind to contribute their fair share in the company subject to criminal action, because any chance they can become so. Does not require the author mentioned that the taxpayer who will try to make the purchase of shares but a potential customer, for example, might say, of a five-year tomorrow may be interested in the stock market. If public confidence is at risk of an impairment, can only be that of the group or sector linked to the commercial or industrial firm in question, partners, shareholders, depositors, creditors, etc .-, but that is future-grief a real danger to the legal involvement (22) - can not be other than an economic. No other result seems to arise from a simple reading of the criminal. The title which inserted Article 301 can only draw that kind of confidence, but should not be overlooked the nomen juris of the chapter: it is a fraud, ie deception (23) whose purpose is to injure an activity particular trade or industry, in other words, the typical behavior is a deceptive maneuver that generates the detriment of assets, as exemplified in his time with Sebastian Soler aguamiento the actions of the current holders (24). This way of conceiving the crime of Delivery of contest or consent to illegal or even against only possible with a much more modern that distinguishes the crimes against the individual property to cause massive damage and the import of specific hazards or damages to assets of many individuals, companies, and even the state or the economy of a community. These are undoubtedly economic crimes. Hence, to taste authors, in our times, these behaviors involve predominant injury to the legal heritage and public economy, and then the trust of those directly related to the body, but not faith and honest in normal development economic activities by the entire society, in no way affected.
7. Relations between the arts. 301 and 173 inc. 7 ° CP is a truth almost a truism: "the conduct of Section 301 lives almost permanently with mismanagement" (25). This was promptly relieved by almost all authors who were devoted to the study of 173 Inc. Art Digest 7 of the substantive criminal. Moreover, Baigún and explain Bergel on Article 301, that "match-like ingredients in a good stretch with infidelity and abuse defraudatorios" (26). However, the doctrine did not spread too much in the analysis of that relationship between the two figures. Some links between these crimes can be delineated, albeit synthetically. As outlined above, the behavior suppressed by the crime of Delivery of contest or consent to illegal or infringing the legal right even against assets of persons directly related to the existent social order and, secondly, the confidence of those subjects in the success of commercial and industrial activities. As for the Administration Fraudulent, the lawyer admitted without argument that the victim is legally the property (27). Viewed this way, both offenses are coming around to the legal. Article 173 paragraph 7 ° provides a special type of limiting the field of potential authors who may only acquire this quality of being in a situation of certain guarantees in respect of the legal (28). The rule itself provides that assets which are subject to a statutory provision, the authority or by a legal act has been imposed for the management, care management or assets or interests of others. The government and management involves the management of assets and interests of others, to reach certain or subject to one or more steps (29), for administration is "the power to rule and govern the property of another, ordering means for better conservation, employment and profit" (30), while care is a function concrete conservation, care or protection of the interests of others, but, unlike the administration is satisfied with the mere surveillance without any operational activity (31). With regard to Article 301, also is a special criminal type specific active subjects: the director, administrator, manager or liquidator of a corporation, or cooperative or collective or other person who fulfills those functions in the body (32) . The director corporation is a member of the management and greater representation of royal power, which is the directory. We're talking about a "collegial body, necessary and permanent, whose members or partners are regularly appointed by the regular meeting of the society and whose function is to perform all acts of administration, ordinary and extraordinary, representing the company before third parties and assuming unlimited joint and several liability for breaches of duties imposed on them by law and the constituent "(33). The manager is an employee of the company, with executive functions ordered by the board and who represents and acts within the limits of the mandate (34). The administrator, however, is any person who is responsible for management functions, such managers in corporations (35), as managers of limited liability companies or members of the Governing Council on Foundations (art. 10, Law 19 836-Adla, XXXII-D, 4986 -) (36). Finally, the liquidator is a person who represents the society in the process of extinction, given powers of accomplishment over the assets and liabilities of the entity (37), forming the residual subject to division and return (38). As can be seen, who happen to be the possible perpetrators of the crime under study are, in turn, liable to commit the crime of Article 173 Inc. 7 ° CP concepts are set out their functions, which displayed the management, care or management of property or interests of others: that the manager in charge of carrying out a purchase of goods specified in abroad by order of the board of the company, management has committed interest in the limits of its mandate, the liquidator, who takes care of movable and immovable property to be sold to meet the corporate debts, not even mentioning the many administrative powers of the board. Once again, both overlapping offenses. In the crime described in Article 301 of the Penal Code, there are two different actions that work in the alternative. The first action is to be defined to provide competition. In the literature there is agreement on this action, because they understand that when the legislature referred to the formula "to provide competition," I wanted to mention a partnership, cooperation, aid or assistance to perform "other subject-acts that are inconsistent with both the law and the statutes (39). Now, when we say that the subject lends this collaboration or assistance, it is clear that the act itself dangerous (for potential damages incurred) takes out another therefore conclude that it is providing a course for enlargement of criminality that could be covered by the rules of participation of the general criminal code, that is, it is rising to the rank of writer who works with an act contrary to law or statute can reach any damage evolution leaving aside the act forward who has truly dangerous action. As for the second act prohibited within our legal system art. 301 of the CP, we can say that the legislature chose a formula unfortunate, because it is not clear what he means when he says give consent or what their scope. Authors like Lescano Margitic and consider consenting expression has a classic legal sense to grant or force, to give the act in question (40). Rotman argues that consent is to allow someone to do the wrongful act sufficient simply to be condescending, insists on the concept of consent and therefore assumed to commit more so the typical action who directly give the wrongful act (41). Give consent is an open formula is to be closed in honor of the principle of maximum legal limitation and interpretation, by which greater effort is required semantic accuracy by the interpreter to analyze a behavior (42). It said, for conduct in the criminal frame studied, must be specially arranged for the active subject is obliged of consent in the act that is considered contrary to law or the statutes, not just any event, the individual must be responsible for it or be in a position of guarantor on that. This action will provide consent must be covered within the scope of their duties and have a manifest obligation imposed by the rules appropriate for the particular case (43). Returning to the mismanagement, we note that Article 173 Inc. 7 ° supports two typical behaviors, one of infidelity, prejudice the interests entrusted, and other abuse-forces that abused the holder thereof. To this should meet their obligations, ie, to counteract the legal and statutory provisions governing commercial and industrial development of the legal person or the powers and duties have been imposed by them. This implies a reference to the field of company law most often (44). And, as noted more Baigún and Bergel, acts contrary to the rules or the law of Article 301 is the equivalent to a violation of Article 173 duty Inc. 7 (45). The doctrine is, as far as competitions are concerned, matching, Article 173 Inc. 7 moves in its application to Article 301 because it is a punishable offense hardest (46), but this is actually a result of that, more Beyond the problems of interpretation and because it danger of crime, the legislature has tried to capture actions that appear as clear preparatory acts or executives of other crimes, for example, mismanagement, which reinforces the view expressed about assuming a similar legal right (47) . This relationship goes beyond the subsidiarity expresses the type of crime. In sum, the relationships outlined briefly, you can see that the provision of competition for illegal or even against the works, most of the time in preparation or early implementation of the crime of fraudulent administration, demonstrating the few judgments "exclusively" on this offense and almost no importance to the national law has been granted.
(1) The authors do not notice the background which is the draft 1891 and quote the 1906 as the first ancestor of the standard study. This error was reported promptly by MARGITIC, Myriam A. and LESCANO, Rose S., Implementation of wrongdoing in the field of corporations (Article 301 § 1, CP). Their doctrinal and jurisprudential interpretation, Journal of the Institutes, No. 42, Universidad Nacional de Córdoba, 1981, p. 85.
(2) The article according to Decree Law 17,567 is different from the text currently in force for lack of a comma after "corporation" and that instead of "seriously punished "used the term" severely ".
(3) refers to the crime of False Balance.
(4) V., PALACIO FOLIAGE, Carlos, Clearing companies and the project of amending Article 301 of the Criminal Code, LAW , 2004-D, 1495.
(5) CREUS, Carlos, criminal law. Special Part, vol 2, Astrea, Buenos Aires, 1996, p. 499.
(6) SOLER, Sebastian, Criminal Law Argentino, t. V, TEA, Buenos Aires, 1978, p. 372. The emphasis in original.
(7) MARGITIC, Myriam - LESCANO, S. Rose, op. cit., p. 92.
(8) NAVARRO, Guillermo R., Fraud Trade and Industry. The crimes of Articles 300 and 301 of the Penal Code, Legal Thought Editora, Buenos Aires, 1998, p. 118.
(9) Rotman, Edgardo, trade frauds and industry, Abeledo-Perrot, Buenos Aires, 1976, p. 210.
(10) Gomez, Eusebio, Criminal Law Treaty, t. VI, Compania Argentina de Editores, Buenos Aires, 1942, p. 184. Consistent with his ideas, analyzing these types of crimes in a part of his work dedicated to crimes against trade and public economics, however, explains that with the art. 301 is to protect "good faith commercial and industrial" suggesting conditioning at prevailing opinions.
(11) Gomez, Eusebio, op. cit., p. 378, where you can read the relevant section of the project. Article 386 is similar to art. 301 of the Penal Code of 1921.
(12) NUNEZ, Ricardo C., A Treatise on Criminal Law, t. V, Lerner, Córdoba, 1992, p. 224.
(13) DONNA, Edgar, A., Criminal Law. Special Part, t. IV, Rubinzal-Culzoni, Santa Fe, 2004, p. S. 349;
(14) SOLER, Sebastian, op. cit., t. V, p. 372.
(15) WINIZKY, Ignacio, Criminal liability of directors of legal persons trading, Arayú, Buenos Aires, 1954, p. 88.
(16) Rotman, Edgardo, op. cit., p. 227.
(17) CREUS, Charles, op. cit., p. 508.
(18) FONTÁN BALESTRA, Carlos, Criminal Law. Special Section, 16 st of. Current. by Guillermo Ledesma Abeledo-Perrot, Buenos Aires, 2002, p. 1002.
(19) NAVARRO, William, op. cit., p. 127.
(20) MARGITIC, Myriam A. - LESCANO, S. Rose, op. cit., p. 99.
(21) DONNA, op. cit., p. 354.
(22) For rule of constitutional principle of harmfulness that emanates from the art. 19 of the Constitution, all danger is concrete or nothing. Follow it to Zaffaroni, Eugenio R.-Alagi, Alejandro-Slok, Alexander, Criminal Law. Party General, 1 st ed., Ediar, Buenos Aires, 2000, p. 468 and s.
(23) Bottke, Wilfried, what is or what is called a scam? In Criminal Law Review, vol 2000-2, Rubinzal-Culzoni, Santa Fe, p.10.
(24) SOLER, Sebastian, op. cit., p. 382.
(25) Baigún, David - Bergel, Salvador D., fraud in the company directors (The Art. 173, inc. 7 of the Penal Code in the orbit of commercial companies), Depalma, Buenos Aires, 1988, p . 208.
(26) Idem above.
(27) CAAMAÑO PAIZ IGLESIAS, Cristina, fraudulent Administration in Criminal Law Review, vol 2000-1, Rubinzal-Culzoni, Santa Fe, p. 228; ABOS, Gustavo E., The crime of fraud by management infidel, B F, Montevideo, 2001, p. 12.
(28) For all Baigún, David - Bergel, Salvador. D., op. cit., p. 122.
(29) CAAMAÑO PAIZ IGLESIAS, Cristina, op. cit., p. 266.
(30) CAAMAÑO PAIZ IGLESIAS, Cristina, op. cit., p. 269.
(31) Baigún, David - Bergel, Salvador D., op. cit., p. 125 and s.
(32) NUNEZ, Ricardo C., op. cit., p. 229; MARGITIC, Myriam - LESCANO, S. Rose, op. cit., p. 93.
(33) BRUNETTI, Antonio, Treaty of corporate law, p. 455, cit. by Villegas, Carlos G., company law, commercial, Abeledo-Perrot, Buenos Aires, 1993, p. 433.
(34) Rotman, Edgardo, p. 216.
(35) NAVARRO, William R., op. cit., p. 86.
(36) Balbin, Sebastian - CEROLINI, Augustine, The crimes of false statement and false balance in the law of commercial companies, ED, t. 205, p. 1003
(37) NAVARRO, William R., op. cit., p. 87.
(38) Balbin, Sebastian - CEROLINI, Augustine, op. cit., p. 1003; MARGITIC, Myriam - LESCANO, S. Rose, op. cit., p.
95 (39) To NAVARRO, William R., op. cit., p. 122, "provide competition" rejects any possibility of acting independently. "
(40) MARGITIC, Myriam - LESCANO, S. Rose, op. Cit., P. 97, in the same direction, NAVARRO, William R., op. cit., p. 123.
(41) Rotman, Edgardo, op. cit., p. 219.
(42) Zaffaroni, Eugenio - Alagi, Alejandro - Slok, Alexander, op. cit., p. 110 et seq .
(43) Likewise, WINIZKY, Ignacio, op. cit., p. 63.
(44) Baigún, David - Bergel, Salvador D., op. cit., p. 133.
(45) Baigún, David - Bergel, Salvador D., op. cit., p. 208, note 25.
(46) In all, CARRERA, Daniel P., mismanagement. Disloyalty to protect them from foreign assets, Astrea, Buenos Aires, 2002, p. 171. Also, CNCrim. and Correcc., Room IV, in re "Consoli, Prospero, ACT, 1990-D, p. 516 et seq.
(47) In contrast, Baigún, David - Bergel, Salvador D., op. cit., p. 208, for those who impose the rules of perfect competition "not only because we are dealing with two different legal devalued, but also the authorization of wrongdoing is not an unavoidable step to The committee of mismanagement. "
As noted, Article 301 of the Penal Code has its first precedent in Article 218 of the Penal Code Project of 1891, written by Drs. Piñero, Rivarola and Matienzo (1) . The same was included in Title V, "Crimes against property," Chapter V, "Broken and other debtors punishable" and stated: "shall be punished by a fine of 4000 to 20,000 pesos, the director, manager or manager of a corporation or cooperative or any legal person, that I will perform your contest or consent to acts contrary to the statutes, laws or ordinances that govern them, as a result of which the legal person or association will stay unable to meet their commitments, or the need to be dissolved. Its writers mentioned have modeled the arts. 345 and 347 of the Dutch Code. Subsequently, Article 320 of Draft Penal Code of 1906, and located in Title XII, "Crimes against public faith in Chapter V," fraud on trade and industry ", under the heading" Acts contrary to statutes, laws and ordinances " textually read: "shall be punished by a fine of 4000 to 20,000 pesos, the director, officer or director of a corporation or cooperative or other legal person kind that prestare their assistance or consent to acts contrary to the statutes, laws or ordinances that govern them, as a result of which the legal person or partnership, I will be unable to meet their commitments or the need to be dissolved. In The report accompanying the project, about this article and others of the same title, it says that "all the crimes that we in this part of code responds to perceived needs of the social order and ensuring a respectable and fundamental rights, public and private. Moreover, they appear in most of the foreign codes, especially modern, and there is no reason not to be incorporated our positive law. "Penal Code of 1921 receives the direct rule of the latter bill. The current wording of the criminal figure 17,567 comes from the decree law, which takes as precedent the Draft Section 238 of the Penal Code drafted by Sebastian Soler in 1960 and Section 296, Inc. 3 °, the Danish Code. After being repealed by Act 20,509 (Adla, XXXIII-C, 2952), was restored with a few tweaks by Decree Law 21,338 (Adla, XXXVI -B, 1113), continuing work force by Law 23077 (Adla, XLIV-C, 2535). Thus, Article 301 is as follows: "shall be punished with imprisonment from six months to two years, the director, manager, administrator or liquidator of a corporation, or cooperative or collective person who knowingly prestare their assistance or consent to acts contrary to law or the statutes, which can lead to damages.
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